Gujarat High Court
Minaxiben D/O Chhaganbhai Jethalal ... vs Shubhangbhai Bhailalbhai Pandya on 11 July, 2024
Author: A.Y. Kogje
Bench: A.Y. Kogje, Samir J. Dave
NEUTRAL CITATION
C/FA/769/2019 JUDGMENT DATED: 11/07/2024
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 769 of 2019
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE A.Y. KOGJE
and
HONOURABLE MR. JUSTICE SAMIR J. DAVE
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1 Whether Reporters of Local Papers may be allowed Yes
to see the judgment ?
2 To be referred to the Reporter or not ? Yes
3 Whether their Lordships wish to see the fair copy No
of the judgment ?
4 Whether this case involves a substantial question No
of law as to the interpretation of the Constitution
of India or any order made thereunder ?
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MINAXIBEN D/O CHHAGANBHAI JETHALAL VYAS & ANR.
Versus
SHUBHANGBHAI BHAILALBHAI PANDYA
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Appearance:
MR BJ TRIVEDI(921) for the Appellant(s) No. 1,2
MS JIGNASA B TRIVEDI(3090) for the Appellant(s) No. 1,2
MR P J YAGNIK(1004) for the Defendant(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE A.Y. KOGJE
and
HONOURABLE MR. JUSTICE SAMIR J. DAVE
Date : 11/07/2024
ORAL JUDGMENT
(PER : HONOURABLE MR. JUSTICE A.Y. KOGJE)
1. The present appeal under Section 19 of the Family Courts Act is directed against the judgment and order dated 26.11.2018 passed Civil Misc. Application No.90 of 2010 by the Family Court No.3, Ahmedabad. The Page 1 of 11 Downloaded on : Thu Jul 18 20:31:08 IST 2024 NEUTRAL CITATION C/FA/769/2019 JUDGMENT DATED: 11/07/2024 undefined appellants before the Court is the wife and daughter of the respondent herein. It is a case where the appellant No.1 and respondent had undergone judicial separation and final decree and judgment was passed for dissolution of marriage.
2. The family suit was filed by the appellant No.1. It appears that the judgment and decree of dissolution of marriage was passed on the basis of compromise which contained a provision for maintenance of the appellant No.1-wife, daughter, appellant No.2 (now married) and the then minor son (now major). The agreement was for payment of maintenance to the tune of Rs.3,000/- per month i.e. to say Rs.1,000/- for the wife and Rs.1,000/- each for two children. This decree was drawn on 27.01.2003 and thereafter, in the year 2010, the appellants preferred Civil Misc. Application No.90 of 2010 seeking an enhancement of the maintenance by filing an application under Section 25(2) of the Hindu Marriage Act.
3. The Family Court by the impugned judgment and order, rejected the application primarily on the ground that both minor children have now attained majority. The then son is major and is now serving in Government Health Department and maintaining appellant No.1-mother, whereas appellant No.2 has already married and that at the relevant time both the parties had arrived at an amicable settlement for maintenance of Rs.3,000/- per month for all the family members and therefore, such application came to filed.
4. Learned advocate for the appellants has argued that there is a change in the circumstances, where her expenditure has increased and her medical treatment cost has also increased and the Family Court has failed to take into consideration such increase in the expenditure of the appellant No.1. At the same time, the Family Court has also not taken into consideration the fact that the earning capacity of the respondent-husband has increased with the passage of time. Learned advocate has argued that the Family Court has applied a wrong principle of estoppel invoking Section 115 of the Evidence Act by holding that the compromise and settlement at Page 2 of 11 Downloaded on : Thu Jul 18 20:31:08 IST 2024 NEUTRAL CITATION C/FA/769/2019 JUDGMENT DATED: 11/07/2024 undefined the time of dissolution of marriage will act as an estoppel for the appellants to claim enhancement of maintenance.
4.1 It is submitted that an erroneous finding is given by the Family Court that the documents produced by the appellants on the record would not indicate any increase in the income of the respondent-husband. It is submitted that in this regard, Family Court has failed to take into consideration the admission of the respondent-husband in his deposition that present salary of the husband was increased from Rs.6,000/- per month at the relevant time to Rs.38,000/- at present and in view of such admission, the Family Court ought not to have concluded that the appellants have failed to bring on record the increase in the income of the respondent- husband. Learned advocate has thereafter, argued that an error is committed by the Court in framing issue No.2, which is for the purpose of whether the petitioners Nos.2 and 3 are entitled to the maintenance, particularly when petitioners Nos.2 and 3 were already ordered to be deleted in the original proceedings. Therefore, the Family Court has misdirected itself in framing issue No.2 at the behest of the respondent- husband and then answering the same.
4.2. Learned advocate has relied upon the decision of the Apex Court in case of Sanju Devi v/s. State of Bihar, reported in, 2018 (2) CivCC 123 to support the argument that the judicially separated wife is entitled to maintenance. Reliance is also placed on the decision of the Apex Court in case of Kalyan Dey Chowdhury v/s. Rity Dey Chowdhury Nee Nandy, reported in, AIR 2017 SC 2383 in support of his argument that where there is an increase in the salary of the husband, the wife would be entitled to the enhancement of maintenance under Section 25(2) of the Act. Another judgment is relied upon in case of Shailja and another v/s. Khobbanna, reported in, AIR 2017 SC 1174.
4.3 During the course of argument, learned advocate for the appellant has also raised a grievance against the conduct of learned advocate for the respondent as though the appellants and her advocate had tried hard to Page 3 of 11 Downloaded on : Thu Jul 18 20:31:08 IST 2024 NEUTRAL CITATION C/FA/769/2019 JUDGMENT DATED: 11/07/2024 undefined compromise the matter amicably, it was on account of adamant stand taken by the respondent that the compromise could not be arrived at. Learned advocate went to the extent of saying that it was only on account of accommodating learned advocate for the respondent on medical issues that the matter has been prolonged to such a great extent. Therefore, as an officer of the Court, learned advocate for the respondent ought to have taken a pragmatic view. The other sermons were also rendered by the learned advocate for the appellants to which the Court would not like to refer in the present judgment.
5. As against this, learned advocate for the respondent strongly refuted the allegations made personally against the learned advocate and has submitted that he had sought accommodation on account of a genuine medical condition of his wife, who is suffering with Cancer and that he himself had made efforts to see to it that the appeal ends in amicable solution. It is however, argued that the present appeal was moved almost after the period of ten years and in between, the appellants did not find any cause of action to move the Court for enhancement and in fact, change in circumstances are in favour of the respondent-husband as both the children out of the wedlock have attained majority, where the daughter is already married and residing with her husband and family, whereas the son after attaining the majority is in Government service, Health Department and the appellant No.1 is being maintained by him.
5.1 On the other hand, after the decree of judicial separation,the respondent-husband has remarried and has a responsibility of his parents (aged mother) and now also the wife of second marriage. It is submitted that the respondent has now already retired from the service and from the post retirement, he is receiving Rs.3,500/-. Learned advocate for the respondent-husband has today produced before the Court documents pertaining to pension under the Employers' Provident Funds which has fixed monthly pension of Rs.3,500/- for the respondent-husband. The other documents placed on record is of employer company of the respondent and Page 4 of 11 Downloaded on : Thu Jul 18 20:31:08 IST 2024 NEUTRAL CITATION C/FA/769/2019 JUDGMENT DATED: 11/07/2024 undefined which refers reimbursement toward leave encashment to the tune of Rs.84,772/-.
6. Heard learned advocates for the parties and perused the documents placed on record. It would be appropriate to mention the chronology of events so as to appreciate the facts of the case in correct perspective. The marriage between appellant No.1 and respondent was solemnized on 19.01.1989. Out of the wedlock, two children were born and thereafter, on account of the differences between the parties, the appellant filed a suit for judicial separation being Family Suit No. No.709 of 2001. The Family Court on 27.01.2003 passed an order of dissolution of marriage on the basis of judicial separation and this was done by consent. The consent was also to the extent of the monthly maintenance to be paid by the respondent- husband being Rs.1,000/- each for the wife, daughter and the son.
7. Thereafter, on 02.02.2010, filed Misc. Civil Application No.90 of 2010 claiming enhancement of monthly maintenance of Rs.1,000/- to Rs.12,000/-. This application was finally decided by the impugned judgment and order rejecting the application for enhancing the maintenance amount.
8. Exh.-1 plaint by the appellant No.1, wherein the basis for enhancement was increase in the cost of living of the appellant No.1. The cost of living had increased three times and at the same time, the respondent-husband is well placed in a private company and is drawing good salary. The application was thereafter, amended claiming Rs.12,000/- per month towards maintenance of appellant No.1 and an amount of Rs.3,000/- for appellant No.2 from the date of application till the date of marriage (08.12.2013) (as per order below Exh.48 dated 10.05.2016). However, as recorded in the proceedings, appellant No.2 is not claiming now and therefore, only with regard to the claim of appellant-wife, the matter is to be proceeded.
8.1. Vide Exh.9/66, the respondent filed his response to the application Exh.1 contenting interalia that the application is made only for the purpose Page 5 of 11 Downloaded on : Thu Jul 18 20:31:08 IST 2024 NEUTRAL CITATION C/FA/769/2019 JUDGMENT DATED: 11/07/2024 undefined of harassment and that is evident from the fact that though the son had attained majority, still his name was included as an applicant. It was contended that there is no justification to the claim of Rs.12,000/- towards the maintenance of appellant-wife and that the respondent himself is suffering with various ailments and other family responsibilities, is not having financial standing for supporting such enhancement.
8.2 Vide Exh.67, the evidence in chief is recorded through the affidavit of the appellant No.1 wherein amongst other things she has deposed that the daughter (Appellant No.2) has married on 08.12.2013 and the son had attained majority as on 11.11.2009. It is deposed that the respondent was liable to share responsibility of settling down the daughter which the respondent has not fulfilled. It was deposed that date of birth of the daughter (Applicant No.2) is 11/12/1989, she is not minor and the date of birth of son is 11/11/1991, he is also not minor, at the time of filing the application. The son named Dhrumil Subhangbhai Pandya I. e., son of the applicant No.1 become adult on 11/11/2009 but as he is still studying there is moral responsibility of the respondent-father as attached to the son. Thus, she humbly request that day to day expenditure had increased to such extent and therefore, the enhancement was sought to the tune of Rs.12,000/-. In the cross-examination, this witness has admitted that Family Suit No.709 of 2001 was decided and the final order and decree was passed on the basis of settlement. It is also deposed that after the monthly maintenance was decided by the settlement, the appellant was not required to borrow any money for supporting family. It is deposed that son Dhrumil is employed with the Health Department and the maintenance of the appellant-wife is by her son. Further, she has deposed that she has filed present application based on the Family Suit No.709 of 2001 for divorce. The final order and decree passed in the Family Suit No.709 of 2001 was entered into pursuant to settlement entered into between them. She has received all of the proceeds from the settlement of claim. The agreement entered into between them in relation to the above claim was final and not subject Page 6 of 11 Downloaded on : Thu Jul 18 20:31:08 IST 2024 NEUTRAL CITATION C/FA/769/2019 JUDGMENT DATED: 11/07/2024 undefined to any modification. She has not filed any appeal till date against the final order and decree passed in Family Suit No.709 of 2001. She does not appear to have borrowed money from anyone after signing the agreement, her brother Yashwant was paying her all the expenses. Currently, son of the applicant No.1 is employed in the Health Department at Nadiad City and drawing monthly salary of Rs.12,000/- per month and the maintenance of the applicant-wife is by her son.
9. Vide Exh.72 the respondent was examined, where evidence in chief was given in the form of affidavit and has indicated that vide Exh.9, written reply was given by the appellant which may be treated as part of the reply. In his evidence in chief, he has narrated the details regarding medical ailment including suffering with paralysis stroke from which respondent has barely recovered, but is now permanently suffering with Hysteria. It is also coming on record that the respondent had remarried and has responsibility of aged mother and also the other family members. In the cross- examination, he has admitted that in the year 2002-03 his monthly salary was Rs.6,000/- and in the year 2018 he was drawing salary of Rs.38,000/- per month. It is also admitted that the aged mother is residing with the respondent and she is also getting pension which is deposited in her bank account to the tune of Rs.4,000/-. He has admitted that family of his brother, who is also having medical problem is residing with them. Alongwith this, vide Exh.74, list of documents have been placed on recorde which are primarily medical case papers of the respondent.
10. It is settled proposition of law that the wife has right to claim of enhancement of maintenance under Section 25(2) of the Hindu Marriage Act and even where the alimony is decided on the basis of settlement arrived at between the parties, still with the change in the circumstances, wife can can make an application for enhancement.
11. The Gauhati High Court in case of Uma Ray v/s. Mridul Ray, reported in, 2024 (O) AIJEL-AS 628345, has held in para-8 as under:-
Page 7 of 11 Downloaded on : Thu Jul 18 20:31:08 IST 2024NEUTRAL CITATION C/FA/769/2019 JUDGMENT DATED: 11/07/2024 undefined "8. Now the question comes whether the appellant/wife is entitled to maintain an application for enhancement of permanent alimony.
Section 25(2) of Hindu Marriage Act, 1955 provides that if a court is satisfied that there is a change in the circumstances of either party at any time after the order of alimony was made, it may at the instance of the either party, modify or rescind or any such order in such manner as may be deemed just by the Court. This provision gives recurring cause of action to either of the parties to the matrimonial dispute to have the order or the permanent alimony varied, modified or rescinded. In this way, the aforesaid statutory provisions empower the parties to give the order fixing permanent alimony revised subsequently if there is a change in circumstances."
12. The High Court of Andhra Pradesh in case of Smt. P. Archana @ Atchamamba v/s. Varada Shiva Rama Krishna, reported in, AIR 2008 AP 2026, has held in para-28 as under:-
"28. It is true that Section 25 (2) of the Hindu Marriage Act does not specifically include the expression 'agreement'. However, keeping in view the very intendment and object of Section 25 of the Act, we are of the opinion that the claim for enhanced maintenance cannot be rejected merely on the ground that there was a settlement between the parties under which the applicant agreed not to make any further claim for maintenance. Such an interpretation would defeat the very object of Section 25 of the Act. While considering an application under Section 25 (2) of the Act, in our opinion, the only criteria should be whether there is any change in the circumstances justifying the enhancement of compensation. I Whether the earlier order under Section 25 (1) of the Act granting maintenance was an agreed order or an order on contest is immaterial since the right to maintenance under Section 25 of the Act is a continuing right variable from time to time. Such discretion conferred on the Court under sub-section (2) of Section 25 to vary the maintenance awarded under sub-
section (1) of Section 25 in the changed circumstances cannot be restricted and the substantive right conferred under the; statute cannot be denied to a party merely on the ground of an agreement contra between the parties. As a matter of fact, such agreement defeating the right of maintenance provided under a statute being contrary to public policy is not a valid contract and therefore cannot operate as a bar to exercise the jurisdiction conferred under Section 25 (2) of the Act."
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13. The change in circumstances will have to be appreciated from the point of view of the maintenance of the wife, in the present case, considering the fact that the other claimants have now attained majority and are self dependent. Therefore, the issue before the Court is whether the facts which are in existence as on date, whether the appellant is justified in claiming enhancement.
14. By order dated 10.10.2019, this Court had called for Records and Proceedings from the trial Court. By order dated 07.01.2021, this Court directed for preparing and placing the paper book. The original proceedings were of 2001 and the present application before the Family Court is of 2010. The Court therefore, may take up this matter for final disposal.
15. In the facts of the case, enhancement is sought by appellant No.1- wife due to change in the circumstances with the thrust on the circumstances that the salary of the respondent has increased manifold and cost of living has increased. Insofar as the increase in salary is concerned, the Family Court has held that there is no evidence brought on record about the increase in salary. Learned advocate for the appellants is correct in his submission that the increase in the salary of the husband is admitted by him in his own deposition therefore, not bringing any documentary evidence on record is of no consequences.
16. However, increase in the income of husband is not required to be seen in isolation. The facts of the case suggest with the increase in the salary, respondent-husband's responsibility has also increased from the evidence on record. The husband is having a persistent medical ailment and is on permanent medication. His aged mother is his responsibility. He has remarried and the family of his brother is also residing with him since beginning.
17. On the other hand, the fact revealed that the wife in her evidence has accepted that between 2001 to 2010, she never had to borrow any money Page 9 of 11 Downloaded on : Thu Jul 18 20:31:08 IST 2024 NEUTRAL CITATION C/FA/769/2019 JUDGMENT DATED: 11/07/2024 undefined from her relative or other to maintain herself. Both the children have grown up. The daughter has married and son is employed in Health Department and she was living with her son.
18. The Court is of the opinion that after judicial separation in 2001 till 2010, the appellant-wife had no cause of action to move the application for enhancement and therefore, there was no requirement for enhancement or that the maintenance agreed between the parties was insufficient and presently the appellant No.1 is leaving with her son who is employed with the Health Department. The Court therefore finds justification in the impugned order of the Family Court that the appellant No.1 has failed to make out a case of enhancement.
19. In the deposition of the appellant-wife, she has deposed regarding the situation she faced in upbringing of two children when they were minor, till they attained majority. It is argued that this was complete non- participation of the husband in important events of the lives of the children like marriage of the daughter and higher education of the son which of course would have increased some expenditure beyond the means of the maintenance provided. Further, expenditure like house rent, school fees, electricity bill, medical expenses and other household expenses are increasing day by day and therefore, all these petty things have to be taken into consideration whenever deciding on the amount of monthly maintenance. But all these circumstances are of past and not the basis for enhancement claimed. Still, the Court is of the opinion that at the relevant time, there was substantial increase in the salary of the respondent- husband. Today he has retired. He has shown certain documents about his retirement and amount received by him towards pension and other retirement benefits. Though learned advocate for the appellants may object to consider the documents however, undertaking the process for bringing additional evidence on record would further delay the proceedings which will not be in the best interest considering the advanced ages of both the parties.
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20. The Court has also considered the submission that great efforts were made by both learned advocates to arrive at the amicable settlement, but for one reason or the other, it could not be arrived at finally through both parties had positive mindset to settle.
21. In totality of the facts and circumstances discussed here, the Court is of the view that the case needs to be finally concluded so that both parties can live peaceful retired life. Hence, interest of justice will be served by awarding a lump sum amount of Rs.35,000/- to the wife with due regard to her age, her raising both children all alone and the fact that as on date, the respondent has admittedly retired and drawing pension which is far lesser than the salary he was drawing.
22. In view of the aforesaid reasonings, the judgment and order dated 26.11.2018 passed Civil Misc. Application No.90 of 2010 by the Family Court No.3, Ahmedabad stands modified to the aforesaid extent. The present appeal stands disposed of.
23. Learned advocate for the respondent prays for stay of this judgment to enable the respondent to challenge however, considering the fact of this case, prayer is declined.
(A.Y. KOGJE, J) (SAMIR J. DAVE,J) SIDDHARTH Page 11 of 11 Downloaded on : Thu Jul 18 20:31:08 IST 2024